#### Merkel *versus*Berks County.

1. The Directors of the Poor and the Inspectors of the Prison of Berks County drew orders on the County Treasurer for “ *donations”*for benevolent-purposes.

*Held,*that they were properly disallowed by the county auditors.

2. The directors and inspectors had no right to draw nor the treasurer to' pay orders for donations.

3. The object of the orders appearing on their face to be illegal, notice of want of authority in the direbtors and inspectors was brought home to the-treasurer.

*5064. Although the auditors may have improperly passed by the directors and inspectors, the treasurer was not to be relieved from his illegal payment.

5. It is necessary for the correction in the Supreme Court of an error by the Court below in entering judgment on a reserved point, that an exception should be taken at the time of entering the judgment.

January 2d, 1875, at Harrisburg.

Before Aqnew, C. J., Sharswood, Williams, Merour, Gordon, Paxson, and Woodward, JJ.

Error to tbe Court of Common Pleas of *Berks*County, of January Term, 1875.

This was a feigned issue, framed November 5th, 1872, between Samuel Merkel and the County of Berks, on an appeal by him as treasurer of the defendant from the report of the county auditors, refusing to allow him credit for the following orders which had been paid by him:

“Poor House, March 21st,,1870.

“ Treasurer oe Berks County :

“ Pay to H. H. Muhlenberg, Treasurer of Reading Dispensary of Reading, or order, four hundred dollars, for a donation to Reading Dispensary.

«tann no “ Daniel Y. Peter,

no ^ “ J. B. Mast,

“Directors.

Attest: “ W. H. Fisher,

“ Clerk.

Indorsed: “ H. H. Muhlenberg,

“ Treasurer Beading Dispensary.”

“Poor House, September 19th, 1870.

“ Treasurer oe Berks County :

“ Pay to Jonathan Dorwart, of Reading, or order, twenty-five dollars, for a donation for the Young Men’s Christian Association of Reading.

££ «feoK no “ Daniel B. Lorah,

“ Jacob B. Mast,

“ Directors.”

.Attest: “ W. H. Fisher,

“ Clerk.”

Indorsed: “ Jonathan Dorwart.”

“Beading, Pa., November 2d, 1870.

“ Mr. Samuel Merkel,

“ Treasurer of the Berks County Prison.

“Pay to Young Men’s Christian Association, or order, twenty-five dollars, for donation. By order of the' Board. “ $25.00. “ David L. Wenrich,

“President.

Attest: “ Geor&e Leroh,

“ Secretary.

Indorsed: “ Henry Rhoads,

“ Treasurer Y. M. C. A.”

*507The plaintiff gave the orders in evidence.

He also submitted the following acts of Assembly:

“ An act, approved March. 29th, A.D. 1824, entitled ‘ An act to provide for the erection of a house for the employment and support of the poor in the county of Berks, and for other purposes.-’

*“*Section 12. And be it further enacted by the authority aforesaid, That it shall be the duty of the said directors, or a majoi'ity of them, immediately after their first election, and annually forever thereafter, to make an estimate of the sum necessary for the support of the poor of the said county for the year ensuing the making of such estimate, and shall forward the same to the county commissioners, who shall provide by tax or otherwise, the sum required by such estimate to be paid by the county treasurer, on orders drawn by the directors aforesaid, as the same may be found necessary.

“Sect. 18. And be it further enacted by the authority aforesaid, That the said directors shall yearly, and every year, on the first Monday of January, render an account of all the moneys by them received and expended, to the county auditors, to audit and. settle the same, subject to the same penalties, rules, and regulations as are by law directed respecting the accounts of the county commissioners.

“ Actof 8th April, 1848,entitled ‘ Anactrelative totheBerks County prison, and to discharged convicts’ (Pamph. L.,399): “ Sect. 10. The treasurer of the said county of Berks shall, in addition to his other duties, receive all moneys belonging to the Berks County prison, and shall disburse the same on orders drawn on him by the board of inspectors of said prison; he shall keep a just and true account of all' moneys received and disbursed, which account shall be at all times open to the inspection of the inspectors, and each of them ; he shall once in each year state his accounts and produce his vouchers, which, after inspection by the inspectors, shall by them be laid before the county auditors for settlement, and be acted and reported on as accounts of county officers are' by law authorized to be settled, and shall be subject to like appeals, issue, and judgment.”

The Court, Woodward, P. J., charged the jury that this action was founded on two orders drawn by the Directors of the Poor of the county of' Berks on the county treasurer, one in favor of the Beading Dispensary for $400, and the other in favor of the Young Men’s Christian Association of Beading, for $25, and on an order drawn by the inspectors of the Berks County prison for $25 in favor of the Young Men’s Christian Association; that the right of the'plaintiff to recover is resisted on the ground that all these orders ap*508pear on their face to be donations, and the directors of the poor and the prison inspectors had no legal right to draw orders of that kind. The question of the right of the plaintiff to a verdict was reserved by the Court, with the assent of the parties, and that under the evidence, the jury should find in favor of the orders, with interest from their respective dates.

The jury found for the plaintiff $477.

After argument, the Court, October 30th, 1873, delivered the following opinion on the reserved point:

“ On the trial of this cause, the demand of the plaintiff was for the amount of two orders drawn by the directors of the poor of Berks County, one in favor of the Reading Dispensary, dated the 21st of March, 1870, for $400, and the other in favor of the Young Men’s Christian Association of Reading, dated the 19th of September, 1870, for $25 ; and for the amount of an order drawn by the inspectors of the Berks County prison in favor of the Young Men’s Christian Association, dated the 2d of November, 1870, for $25. Each of these orders was a gift, and that they were without a legal consideration is shown'by the fact that each order specified upon its face that it was a ‘ donation.’ Mr. Merkel, the plaintiff, was treasurer of Berks County in 1870, and paid the orders upon presentation, in that capacity. Upon the settlement of his accounts for that year, the county auditors refused to allow him credit for these payments, and the question has been brought into Court by an appeal from their report. A verdict was rendered pro *forma*at the trial, the legal lights of the parties being reserved for investigation upon the present rules.

“ It is not claimed on behalf of the plaintiff that the issuing of these orders was within the scope of the statutory powers of the inspectors of the prison, and the directors of the poor. That point indeed has not been discussed. But the broad ground was taken in the argument that the treasurer is without discretion, and that he is bound to pay any and every order drawn by officers clothed with statutory power to disburse any portion of the county funds.

“ The 12th section of the Berks County poorhouse act of the 20th of March, 1824, provides that ‘it shall be the duty of the directors annually to make an estimate of the sum necessary for the support of the poor for the year ensuing the estimate, and shall forward the same to the county commissioners, who shall provide the suni required by such estimate to be paid by the county treasurer on orders drawn by the directors as the same may be found necessaiy.’ By the 9th section of the Berks County prison act of the 8th of April, 1848, it is provided that ‘ for the funds necessary for *509keeping, furnishing, and maintaining the prison, the inspectors are authorized to apply to the commissioners of the county, and if it shall appear to the commissioners or the Court of Quarter Sessions that the sum is reasonable, the commissioners shall forthwith draw an order on the treasurer of the county in favor of the treasurer of the prison for such sum as shall be necessary to satisfy such demands. Among other duties imposed by the 10th section of the act of 1848 on the county treasurer is, that requiring him to disburse the moneys belonging to the prison on orders drawn on him by the board of inspectors. The moneys passing into the custody of the treasurer, under the act of 1824, are such as shall be ‘necessary for the support of the poor. Those passing into his custody under the act of 1848 are such as shall be necessary ‘ for keeping, furnishing, and maintaining the prison. To these purposes the public funds are destined. To provide for these purposes the directors- and inspectors are authorized to disburse the funds by drawing orders, which it is the duty of the treasurer to pay. Orders appropriating money to other purposes are illegal, and if the treasurer has knowledge or means of knowledge of their illegality, it is his duty to refuse to pay them when they are presented. He is bound to know the extent and limit of the authority conferred upon him by the law under which he has accepted his office. In this case, express notice wah given him that the orders were drawn for none of the purposes specified in the acts of Assembly. Upon their face they were declared to be donations. The directors and inspectors had no more right to draw them, and the treasurer was no more justified in paying them, than if they had purported to be given to satisfy the gambling debt of a pauper or to buy a prisoner a horse.

“ Very little aid is derived from authority in the examination of this subject. But municipal officers are held to strict accountability. In Berks County *v.*Pile, 6 Harris, 493, it was decided that the county commissioners have no right to bind the county by their agreement to pay the costs of prosecution in a case of conspiracy, made before the entry of a *nolle prosequi*by the district attorney with the permission of the Court. In Richter *v.*Penn Township, 9 Barr, 79, where the treasurer of the school fund of the township had paid orders drawn by the president of the school board, but not attested by the secretary, he was required to show that there was a good consideration for the payment. And in the Commissioners of Lycoming County *v.*The County of Lycoming, 10 Wright, 406, county commissioners were held personally liable for costs paid by their direction before the county had *510become legally fixed for their payment. In view of principles thus settled, such improvident appropriation of public moneys as this case discloses cau certainly not be justified.

“It is probable that the question in issue here should have been passed upon by the jury under proper legal instructions. In entering this judgment, the ruling of the Supreme Court in Greiner *v.*Darrah is not forgotten, in which this Court were reversed for inferring in a case stated a decisive fact which they believed to be the absolutely inevitable consequence of the facts agreed upon. The general rule on this subject is found in the opinion of the Chief Justice in Berks County *v.*Pile, *supra:*‘In a case stated, whatever is not distinctly and expressly agreed upon and set forth as admitted, must be taken not to exist.’ If the point had suggested itself to the counsel or the Court on trial, the jury would have been left to find whether the plaintiff, when these orders were presented, had adequate notice that they were illegally drawn. The fact was assumed, or was at least supposed by the Court to be assumed throughout both the trial and the argument of the rule, that notice of their object and character was shown by the terms of the orders themselves. There is no such certainty of error in the course now taken as to require the submission of the cause to another jury, and the record is so made up as to enable the Supreme Court to make a final disposition of the controversy in the judgment they will enter.”

The Court entered judgment for the defendant, *non obstante veredicto.*

The plaintiff took no exception to the entering of the judgment.

On removal of the record to the Supreme Court by writ of error, the plaintiff assigned the entering of j udgment for error.

*G. F. Baer,*for plaintiff in error.

If these orders were wrongfully issued, the auditors should have charged the directors of the poor and the prison inspectors. Had this been done, then on an appeal by them the inquiry as to their power to issue such orders would have been a proper subject of discussion.

There can be no doubt not only of the power but of the duty of the auditors to take notice of illegal disbursements of the public funds, and to charge the officer who is guilty of misappropriation: Commissioners *v.*Lycoming County, 10 Wright, 496.

*S. L.*Young, for defendant in error.

It is certainly the duty of the auditors in settling the account of the treasurer *511to reject vouchers which show on their face that the money for which they were given was paid illegally. Where the duties of officers intrusted with public moneys are clearly defined by statute, they should be held to a strict accountability : Northampton County *v.*Yohe, 12 Harris, 307. The system of accounting for public moneys prescribed for county officers by the act of 15th of April, 1834, is most necessary to be rigidly enforced: Commonwealth *v.*Porter, 9 Harris, 389. One public officer who has neglected his duty has no excuse for himself because of the negligence of another public officer: 2 American Corporation Cases, 327.

Judgment was entered in the Supreme Court, June 8th, 1875.

Per Curiam :

The orders paid by the treasurer of the county were illegal on their face, and therefore brought home notice to him of the want of authority in the directors of the poor to order the payment. The complaint that the county auditors improperly passed by the directors in their settlement is .just, perhaps, but it does not follow that they should allow an illegal payment in the account of the treasurer. If there were an error committed in the entry of judgment by the Court below, it could not be corrected upon the record before us, which shows no exception taken at the time of the entry of this judgment on the reserved question. This is necessary.

Judgment affirmed.